State v. Gonzalez
121 So. 3d 625
Fla. Dist. Ct. App.2013Background
- Defendant (a medical doctor) was charged in 22-count information; 20 counts alleged racketeering, conspiracy and trafficking in oxycodone, each alleging the doctor "sold or delivered... by means of a prescription written in bad faith and not in the course of professional practice" in violation of §§ 893.135(1)(c) and 893.05 (2009).
- Defendant moved to dismiss the twenty counts under § 893.135(1)(c), arguing that (1) § 893.135 does not specifically criminalize a practitioner’s illicit prescriptions and (2) § 893.13(8) specifically governs prescribing-practitioner misconduct and therefore precludes charging under the trafficking statute.
- The State argued § 893.135’s introductory phrase "notwithstanding the provisions of s. 893.13" permits prosecution under § 893.135 and that § 893.13(8) is an alternative means of prosecution.
- The circuit court granted the motion to dismiss, reasoning the legislative history and harmonization concerns showed § 893.13(8) controls prescribing-practitioner misconduct and that § 893.135’s "notwithstanding" phrase was intended only to avoid simple-possession displacement.
- The State appealed; the district court reviewed statutory interpretation de novo and reversed the circuit court, holding the State may prosecute a prescribing practitioner under § 893.135(1)(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 893.135(1) can be used to prosecute a prescribing practitioner for trafficking despite § 893.13(8) | State: § 893.135 applies "notwithstanding the provisions of s. 893.13," so the State may charge under § 893.135 | Defendant: § 893.13(8) is the specific statute for illicit prescriptions and therefore controls over the general trafficking statute | Court held State may prosecute under § 893.135(1)(c); the "notwithstanding" language permits it |
| Whether prosecutorial discretion allows charging under either statute when offenses overlap | State: prosecutor has discretion to choose among overlapping statutes and penalties | Defendant: prosecutorial choice should be constrained by the more specific § 893.13(8) | Court held prosecutorial discretion permits charging under the trafficking statute despite overlap |
| Whether pre-§ 893.13(8) precedent permits trafficking prosecutions of physicians | State: prior cases allowed prosecution under trafficking statutes for bad‑faith prescriptions | Defendant: later enactment of § 893.13(8) supersedes earlier precedent | Court held precedent (e.g., Cilento) supports prosecuting prescribing practitioners under trafficking statutes |
| Whether O'Hara and statutory harmonization require limiting § 893.135’s reach | Defendant: O'Hara construed the introductory phrase narrowly to preserve defenses in § 893.13 | State: O'Hara addressed prescription defenses, not overlapping penalties; § 893.135 still allows trafficking prosecutions | Court distinguished O'Hara and held harmonization does not preclude prosecution under § 893.135 |
Key Cases Cited
- United States v. Batchelder, 442 U.S. 114 (prosecutor may choose which overlapping statute to charge)
- Fayerweather v. State, 332 So.2d 21 (Fla. 1976) (legislature leaves prosecutor discretion when conduct violates overlapping statutes)
- Cilento v. State, 377 So.2d 663 (Fla. 1979) (physician can be prosecuted under trafficking/delivery statutes for prescriptions issued in bad faith)
- O’Hara v. State, 964 So.2d 839 (Fla. 2d DCA 2007) (construed § 893.135 introductory phrase in context to preserve certain § 893.13 defenses)
- Therrien v. State, 914 So.2d 942 (Fla. 2005) (clear statutory language must be given effect)